House passes bill to require convictions before seizing assets

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Property rights and criminal justice reform advocates are a step closer to achieving their elusive goal of requiring law enforcement agencies and prosecutors to get a conviction before permanently seizing property allegedly connected to a crime.

The state House of Representatives passed House Bill 2810 by a vote of 57-2 on Wednesday, with every Republican and most Democrats supporting the legislation. In passing out of the House, the bill cleared the hurdle that doomed a similar proposal last year. 

The Senate unanimously backed the 2020 iteration of the bill. But before it could go up for a vote in the House, the COVID-19 pandemic hit, forcing the legislature to go on hiatus. When it returned, Democratic lawmakers wanted to see the legislature adjourn as quickly as possible and were largely opposed to the idea of passing legislation not related to the pandemic.

Democrats were also wary of some of the bill’s provisions. Some voiced opposition to the general concept of requiring a conviction before property could be permanently forfeited, while others said they supported the idea but hadn’t had enough time to study the bill and sort through the opposition’s arguments in the rushed atmosphere.

The result was that all 29 House Democrats, along with a handful of Republicans, voted against the measure as the session drew to a close.

Rep. Travis Grantham, who sponsored HB2810, believes things will be different now that those unique circumstances are no longer a factor. He described civil forfeiture reform as an issue that “really bridges the partisan divide.”

“It affects all of our constituents. It’s not a Democrat or Republican issue,” said Grantham, a Gilbert Republican. “Taking people’s property without a conviction is so wrong, and then keeping it. Again, there’s really no party divide that I can think of or any partisan issue that could make me think that we could all be pitted against each other on this one.”

State law allows law enforcement agencies to file suit in civil court to seize property that’s allegedly connected to a crime. That case proceeds independently of any related criminal case, and the onus is on the property owner or other interested party to hire an attorney to fight the attempted forfeiture. Even if someone hires a lawyer to fight the forfeiture, prosecutors need only present clear and convincing evidence that the property was connected to a crime, not that anyone is guilty of anything.

Many of those cases involve property belonging to people who were never arrested, charged or accused of a crime.

Jenna Bentley, a lobbyist for the libertarian Goldwater Institute, described the plight of one of her organization’s legal clients. Luis Garcia collected $5,300 for a youth soccer tournament in 2019, which Scottsdale police seized when they raided his home as part of an investigation into his adult son. Garcia took out title loans on two cars to pay for the event. Police later returned the money, but not until after Garcia lost both cars because he was unable to make the payments on the loans.

Oftentimes, it would cost more to hire a lawyer and fight forfeiture in court than it would to simply replace the seized property. Kurt Altman, an attorney who often handles forfeiture cases, told the House Criminal Justice Reform Committee that he tells many prospective clients that it’s not worth their time or money to go to court.

“Cars get seized that are worth about five or six thousand dollars because a son is selling marijuana out of his mom’s car,” Altman said. “My response usually is, How much is your car worth?’ And they say $5,000. And I’m like, ‘Well I’m going to cost a lot more to get that back than $5,000. I would save your money, take that $5,000 and buy another car.’”

The central provision of the bill is that it would require prosecutors to obtain a conviction against someone before permanently taking their property, which would make Arizona the 20th state to enshrine such a protection in law. Among its other provisions, HB2810 also prohibits the Arizona Attorney General’s Office from using money from its anti-racketeering fund to pay employee salaries, and changes the timeline for forfeiture proceedings to make it easier for people to challenge the seizure of their property.

The state must provide notice that it intends to take someone’s property through forfeiture, and owners or other interested parties currently have 30 days to challenge that forfeiture attempt in court. The government then has another 60 days to initiate forfeiture, after which the case goes to civil court.

Grantham wants to require the government to provide notice of forfeiture to the owner within 60 days of seizing property. The owner or other interested party then would have another 60 days to request a hearing to challenge the forfeiture. Seized property must be returned to the owner within 10 days unless the government files criminal charges and initiates forfeiture proceedings, or if it’s to be used as evidence.

While law enforcement, prosecutorial agencies and other opponents argued in the House Criminal Justice Reform Committee last week that requiring a conviction would hurt law enforcement’s ability to crack down on major criminal organizations like drug cartels, Paul Avelar, an attorney for the Institute for Justice, a conservative legal advocacy group that’s been pushing forfeiture reform for years, noted that very few forfeiture cases actually involve such groups. 

According to a report from the Institute for Justice, Arizona law enforcement agencies brought in $24 million in revenue from civil asset forfeiture in fiscal year 2019, the most recent year for which data is available. Most forfeiture cases involve $1,000 or less in property, the Institute for Justice has found. Grantham said the property seized included cash, cars, guns, cell phones, three glass pie dishes and an $18 Best Buy gift card.

“We’ve got to be asking ourselves, is this really a law that is targeting the cartels? Or is this a law that is targeting other people who don’t have the money to fight back because no one can hire a lawyer for a thousand bucks?” Avelar told the Arizona Mirror.

Only 3% of forfeiture proceeds are used for community programs and donations, Avelar said, and only one-third of 1% goes toward victim restitution. 

Meanwhile, 34% is used to pay personnel, Avelar said, and another large chunk goes toward equipment. Many agencies actually budget based on expected proceeds from forfeiture.

“There’s a large profit incentive in forfeiture, because 100% of the forfeiture proceeds go to the agency involved,” Avelar told the committee.

The bill still faces steep opposition from law enforcement agencies like the Maricopa County Attorney’s Office and Navajo County Sheriff’s Office, which argue that their ability to fight major criminal organizations will be hampered if a conviction is required to seize property. 

“This is an invitation to criminal enterprises and transnational criminal operations to operate in the state of Arizona,” said Michael Soelberg, Gilbert’s police chief and president of the Arizona Association of Chiefs of Police. “Depriving criminals and criminal organizations of their ill-gotten gains is a mechanism to disrupt and dismantle, and deter those who pray on individuals for financial gain.”

Sean Mattson, executive director and president of the Arizona Fraternal Order of Police, warned that criminals will simply sell off their property if a conviction is required for forfeiture. He said he’s never seen something less valuable than a Porsche taken through forfeiture, and that the use of forfeiture on something worth no more than $100 would “nauseate” him.

“If it moves to conviction, it will allow these high-profile embezzlers, drug dealers, gun smugglers, human smugglers to have a fire sale to eliminate their property in order to get off of the charges,” Mattson said.

Deputy Navajo County Attorney Jason Moore told the Criminal Justice Reform Committee the bill would be problematic for law enforcement by striking out provisions of the law authorizing prosecutors to use forfeiture against racketeering suspects. 

Avelar told the Mirror that law enforcement will still be able to seize property from criminal organizations, and that there are other laws in the state’s criminal statutes that are designed to help victims of theft, fraud or scams get their money back. The bill also leaves in place statutes allowing “injured persons” who have suffered economic loss due to the conduct that prompted the forfeiture to seek restitution. 

And Grantham said that while he’s a staunch supporter of law enforcement, forfeiture laws must ultimately lean toward protecting the property of innocent people.

“In our country, if we’re going to do something that hurts one innocent person just because it gets 10 bad ones, we’re doing it wrong, because we’re innocent until proven guilty in this country,” he said.

Not every law enforcement entity is opposed to HB2810. Attorney General Mark Brnovich opposed last year’s forfeiture bill, but is now neutral due to a change Grantham made. The 2020 bill would have almost immediately prohibited the Attorney General’s Office from using anti-racketeering fund money obtained through forfeiture to pay for employees. Under the current bill, that prohibition wouldn’t go into effect until 2024.

-Kurt M. Altman, PLC, is a former state and federal prosecutor and Alison Holcomb is director of the ACLU Campaign for Smart Justice.

This story was originally posted on the AZ Mirror website.